Opinion
No. 11-13-00376-CR
01-14-2016
LISA MARIE CROWELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court Baylor County, Texas
Trial Court Cause No. 13,725
MEMORANDUM OPINION
Lisa Marie Crowell appeals her jury conviction for making a false report to a police officer. See TEX. PENAL CODE ANN. § 37.08 (West Supp. 2015). The jury assessed Appellant's punishment at confinement for forty-five days in the county jail and a fine of $500. In two issues on appeal, Appellant challenges the trial court's rulings prohibiting her from cross-examining a police officer about an underlying forgery case and argues that she did not make a clear and understandable waiver of her Fifth Amendment right not to testify during the punishment phase. We affirm.
Background Facts
Chief John Michael Griffin of the Seymour Police Department received a report from the local grocery store that an individual was passing forged checks. The checks were written on the account of Jimmy Matthies. Jimmy's adult son, Andrew Matthies, passed the checks. Appellant is Andrew Matthies's mother. Chief Griffin went to Appellant's residence, where she lived with Andrew. Chief Griffin testified that, when he informed Appellant about his concerns with the checks, she told him "that Jimmy had given the checks to Andrew." Chief Griffin then asked for a contact number for Jimmy. Neither gave a phone number at that time. Chief Griffin then left the residence.
Appellant later contacted Chief Griffin and gave him a phone number for Jimmy. Chief Griffin dialed the number and a man, who identified himself as Jimmy Matthies, answered the phone. Chief Griffin asked the man if he had given Andrew the checks. The person indicated that he had given consent to Andrew to write checks on the account. Chief Griffin then closed the investigation into the alleged forgery.
Approximately a week later, Chief Griffin received a report that Jimmy was trying to determine why unauthorized funds were being drawn on his account. Chief Griffin then contacted Jimmy, who stated that he had never given consent to Andrew to pass the checks. Jimmy also reported that Chief Griffin had never talked to him and that the number Chief Griffin called did not belong to him.
Chief Griffin attempted to contact Appellant about the incorrect phone number for Jimmy that she gave him. Chief Griffin talked with Appellant at her home. She told him that the number she previously provided was Jimmy's number. When asked if she would text or call the number, Appellant became very argumentative with Chief Griffin and claimed that he was harassing her. Appellant then started to text the phone number to let the other person know that the police wanted to talk to him. Chief Griffin decided to end their interaction and left the residence at that time. Chief Griffin later determined that the number provided by Appellant belonged to Andrew. Appellant was arrested for providing a false report to a police officer.
Analysis
In her first issue on appeal, Appellant contends that the trial court denied her the opportunity to fully cross-examine Chief Griffin about the underlying forgery case. Appellant's argument is predicated on the contention that she should have been allowed to cross-examine Chief Griffin about the investigation of the underlying forgery case and how the forgery case became a case of making a false report to a police officer. The State argues that the evidence sought was irrelevant and that Appellant failed to preserve this issue for our review. We agree with the State's preservation contention.
"Error in the exclusion of evidence may not [be] urged unless the proponent perfected an offer of proof or a bill of exceptions." Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Failure to make an offer of proof or a bill of exception, where the record does not show what the excluded testimony would have been or shown, waives the complaint for appellate review. Id.; Hiatt v. State, 319 S.W.3d 115, 127-28 (Tex. App.—San Antonio 2010, pet. ref'd); see TEX. R. APP. P. 33.1; TEX. R. EVID. 103(a)(2). Appellant did not make an offer of proof or a bill of exception regarding the information that she sought to obtain from Chief Griffin about the underlying forgery case. After reviewing the record, we cannot determine what the excluded testimony would have been or shown. Without an offer of proof, we cannot determine whether the excluded testimony would have been admissible or relevant. Furthermore, we cannot assess the harm, if any, that resulted from the exclusion of the evidence. Thus, Appellant did not preserve this issue for appeal. See TEX. R. APP. P. 33.1. We overrule Appellant's first issue.
In her second issue on appeal, Appellant asserts that her Fifth Amendment right against self-incrimination was violated when the State called her as a witness during the punishment phase. The State contends that Appellant waived her complaint on appeal because she did not object to being called as a witness or invoke her Fifth Amendment right against self-incrimination.
When the State called Appellant to testify during the punishment phase, she did not object to being called to the witness stand by the prosecutor, nor did she in any other way make a complaint to the trial court. The prosecutor questioned Appellant regarding the charged offense and her prior criminal history. Appellant, again without objection, answered all the questions. After the prosecutor concluded her direct examination, Appellant's trial counsel questioned Appellant regarding her suitability for receiving community supervision as her punishment.
The Austin Court of Appeals addressed an analogous situation in Birdsong v. State, 82 S.W.3d 538, 541-44 (Tex. App.—Austin 2002, no pet.). The State argued in Birdsong that the defendant did not preserve error because she failed to object to being called as a witness by the prosecutor. 82 S.W.3d at 541-42. The court noted that a general prerequisite to presenting a complaint on appeal is that the record must show the complaint was presented to the trial court and pursued to an adverse ruling. Id. at 542; see TEX. R. APP. P. 33.1. Based upon this principle, the court concluded that the defendant did not preserve his alleged error. Birdsong, 82 S.W.3d at 542. However, the court continued its analysis by noting that Texas law also provides that a limited class of errors may be presented for the first time on appeal. Id. (citing and applying Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)).
Marin recognizes and refers to three distinct categories of rights: absolute, waivable, and forfeitable. 851 S.W.2d at 279. "Absolute rights" are not optional, cannot be waived or forfeited by the defendant, and include such issues as jurisdiction and due process. Id. at 279-80. "Waivable rights" are those that may only be surrendered by a plain, free, and intelligent waiver. A court has an independent duty to implement these rights absent an effective waiver. Id. at 280. Finally, there are "forfeitable rights," which the defendant must "insist upon" and which include most procedural and evidentiary issues and many constitutional rights. Id. at 278-79.
Rule 33.1's requirement for preservation of error does not apply to rights falling within the first two categories. See id. at 279-80 (citing predecessor to Rule 33.1). Accordingly, the court in Birdsong concluded that it could address the defendant's complaint only if the alleged error fell within either the "absolute" or "waivable" class of rights. Birdsong, 82 S.W.3d at 542. The court concluded that the defendant's right was a waivable right. Id. (citing Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981) (A defendant's right not to testify may be waived only if the defendant's waiver is knowing, intelligent, and voluntary.)); see Johnson v. State, 357 S.W.3d 653, 658 (Tex. Crim. App. 2012). The court further noted that the right may be waived when the defendant voluntarily takes the stand. Birdsong, 82 S.W.3d at 542 (citing Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App. 1969)). The court in Birdsong concluded that the defendant had waived his right not to testify. Specifically, the court stated as follows:
The salient issue is whether the record before us, when viewed in its entirety, satisfies this Court that appellant's punishment-hearing testimony was given knowingly, voluntarily, and intelligently. We conclude that it does. At the time the State called appellant to testify, he was represented by counsel, who was present at the proceeding. Counsel neither objected to the State's calling appellant as a witness nor to any question the State asked of appellant. Appellant answered each question openly, freely, and without hesitation. Appellant's own counsel then cross-examined him extensively, eliciting testimony concerning appellant's desire to receive a probated sentence.Id. at 544.
The facts and circumstances that were present in Birdsong are also present in this appeal. At the time the State called Appellant to testify, she was represented by counsel, who was present at the proceeding. Counsel objected neither to the State's calling Appellant as a witness nor to any question the State asked of Appellant. Appellant answered each question openly, freely, and without hesitation. Appellant's own counsel then cross-examined her extensively, eliciting testimony concerning Appellant's desire to receive a probated sentence, her treatment for her manic bipolar disorder, her willingness to help out her family, her successful completion of prior probations, and her willingness to pay any fine assessed. Thus, when the record is viewed in its entirety, we are satisfied that Appellant was not compelled to testify at the punishment hearing and that her testimony was given voluntarily by her knowing, voluntary, and intelligent waiver of her right to not testify. See Johnson, 357 S.W.3d at 658; Birdsong, 82 S.W.3d at 543-44. We overrule Appellant's second issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE January 14, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.